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To authorise agreements with education providers and others in relation to Indigenous education, under which payments are made for recurrent expenditure, for ABSTUDY approved courses and/or for specific projects. Also, to appropriate some $591 million from the Consolidated Revenue Fund over the quadrennium from 2001 to 2004 for the purposes of such agreements made under the Indigenous Education Strategic Initiatives Programme (IESIP).

Commonwealth targeted assistance to Indigenous students commenced with the passage of the States Grants (Aboriginal Advancement) Act 1969. The Act established the Aboriginal Study Grants Scheme (ABSTUDY) which was at first confined to post-school education and training. It was extended in 1970 through the Aboriginal Secondary Grants Scheme (ABSEG) to include Indigenous students at secondary school. In 1988, ABSEG and ABSTUDY amalgamated to form the Aboriginal Study Assistance Scheme also known as ABSTUDY.

ABSTUDY continued, with various adjustments, as a scheme of direct student support. In December 1998, the Minister for Education, Training and Youth Affairs, Dr. Kemp foreshadowed a number of changes. From 1 January 2000, ABSTUDY would be maintained as a separate scheme, but ABSTUDY benefits would mirror benefits payable to non-Indigenous students under the Youth Allowance. Additional benefits would only be available in situations of particular disadvantage. Dr. Kemp also announced that the Away From Base benefit for courses delivered by 'mixed mode' (eg intensives, residentials, distance learning) would cease to be paid to individual students. Such benefits would instead take the form of a specific purpose grant to education providers, in return for agreed education outcomes under the Indigenous Education Strategic Initiatives Program (IESIP).(1) This took effect through the Indigenous Education (Supplementary Assistance) Amendment Act 1999, the provisions of which continue in the Bill.(2)

In the 1970s and 1980s, Commonwealth targeted assistance to Aboriginal education was provided by a number of agencies in a sometimes fragmented and overlapping manner.(3) Various reports recommended the Commonwealth Government could improve Aboriginal participation in education by increased financial assistance and through better co-ordination of available assistance.(4) In response to such reports, the Government appointed the 1988 Aboriginal Education Policy Task Force, chaired by Professor Paul Hughes, whose report identified a series of national goals for Aboriginal education. The central goal was 'to achieve broad equity between Aboriginal people and other Australians in access, participation and outcomes in all forms of education'.(5)

The National Aboriginal and Torres Strait Islander Education Policy (NATSIEP), a joint initiative of the State, Territory and Commonwealth governments, was implemented by the Aboriginal Education (Supplementary Assistance) Act 1989 (the current Act).(6) The current Act marked a diversification of Commonwealth funding policy. Objectives in Aboriginal education have since been met through supplementary funding to education providers rather than solely through benefits paid to individual students. The current Act established triennial funding and enabled longer term planning for Aboriginal education programs aimed at meeting the goals of NATSEIP through the Aboriginal Education Strategic Initiatives Program (AESIP).(7)

A major review of the National Policy took place in 1994, chaired by Manduwuy Yunupingu. The final report of the review was presented in 1995.(8) In response to the review, the Commonwealth, State, and Territory governments reaffirmed their commitment to the NATSIEP goals in the National Strategy for the Education of Aboriginal and Torres Strait Islander Peoples 1996-2002

Since 1990 when AESIP (now IESIP) was introduced, there has been a steady increase in Commonwealth funding for Indigenous education.(9) The commitment to the Indigenous Education Strategic Initiatives Program (IESIP), in both policy and funding terms, has continued under the coalition Government. However the Bill, in line with the Government's policy in mainstream education, has included, in newsubsection 5(g), a new object which stresses the attainment of better literacy and numeracy outcomes and better attendance outcomes. This implements the 1999-2000 Budget initiative which announced a new National Indigenous Literacy and Numeracy Strategy.(10) The Minister stated

The strategy is a significant component of our overarching national push to provide literacy and numeracy skills for all Australians, no matter whether Indigenous or non-Indigenous, child or adult, employed or unemployed.(11)

The Strategy earmarks $27 million from existing programmes of recurrent assistance for schools and from specific supplementary assistance available through IESIP. The Strategy, launched in March 2000, indicates that funding will be 'performance based' and that IESIP funding priority will be given to agreements aimed at improving literacy, numeracy and attendance of Indigenous students. Specifically it states:

Commonwealth funding is focused on supporting literacy and numeracy skills development. Practical improvements for Indigenous students have been encouraged through performance-based funding under the Indigenous Education Strategic Initiatives Programme.(12)

The Commonwealth intends to introduce more rigorous guidelines for performance monitoring and reporting for its supplementary assistance during the 2001-04 quadrennium funding period. Funding under the Indigenous Education Strategic Initiatives Programme during 2001-04 will be contingent upon the completion of an implementation plan for this Strategy. The Commonwealth will also expect education providers to give priority to improvements in literacy, numeracy and attendance when undertaking initiatives funded by the Indigenous Education Strategic Initiatives Programme.(13)

The Federation of Aboriginal and Torres Strait Islander Languages (FATSIL) expressed some concern over the emphasis expressed in the strategy:

There has been growing concern from some areas that the move by DETYA to boost measurable outcomes in literacy and numeracy in indigenous schooling, would see a shift in funding priorities impacting negatively on a number of indigenous language programs.(14)

The Minister, Dr. Kemp, responded saying

It must be stressed that in 1999 there has been no change to the funding criteria for the Commonwealth's Indigenous Education Strategic Initiatives Programme (IESIP). Under IESIP, education providers receive funds to put in place initiatives to achieve educational outcomes against a set of performance indicators and targets. These include indicators relating to the teaching of indigenous languages, indigenous studies and the delivery of culturally inclusive curricula.(15)

Significantly, Dr Kemp did not made a similar commitment for the 2001-2004 quadrennium and, given the emphasis in the National Indigenous Literacy and Numeracy Strategy, FATSIL's concerns might be justified. Those education providers with less quantifiable performance targets and outcomes that seek funding for the purposes of advancing the objects of the Bill, may find themselves disadvantaged. The Department of Education, Training and Youth Affairs (DETYA) administer the Indigenous Education Agreements. The Explanatory Memorandum stresses a number of conditions that grant recipients must meet in the agreements. 'These conditions will include accountability provisions such as specifying agreed performance targets to be achieved and the provision of financial reports'.(16)

The objects of the Bill are set out in new sections 5-9. They are self-explanatory and emphasise the policy purpose of the Bill which is generally to promote access and equity for Indigenous people in the education system, to instil in that system a greater degree of cultural sensitivity and to achieve better education outcomes for Indigenous people. Although appearing in a different order, the objects provisions are identical to those in the current Act but for the inclusion in the Bill of new subsection 5(g) which refers to initiatives for better literacy and numeracy skills, and better attendance outcomes.

As the overview to the Bill explains, in new section 3 the path by which the Bill achieves these objects is by authorising agreements for the payment of money by the Commonwealth to education providers and other entities. In this respect new section 3, taken together with the dictionary of definitions in new section 4, shares basically the same content as sections 8-9 of the current Act.

There are three main differences between the current Act, and the Bill. The current Act explicitly sets out in section 10 certain acquittal and reporting requirements which attach to any payments made under an agreement. These requirements are not reproduced in the Bill; nor are other conditions which the current Act says may be included in any particular agreement.

Secondly, the Bill introduces new subsection 3(6) which does not appear in the current Act. That particular subsection is linked to new subsection 12. Together those provisions in the Bill make clear that if a condition in an agreement is breached, the Minister may demand repayment to the Commonwealth of up to the full sum paid to the recipient. The Minister may set off the recoverable amount against any other payments authorised under the agreement, by reducing those other payments by a corresponding amount (new subsection 12(3)). In addition, the Bill makes the recoverable amount a debt for which the Commonwealth can sue in the courts (new subsection 12(4)). There seems little doubt that the kind of breach giving rise to recovery by the Commonwealth under new section 12 is intended only to be a breach by the grant recipient, not one by the Commonwealth. This is probably implicit but any ambiguity could be cured by an amendment which added the words 'by the recipient' at the end of new paragraph 12(1)(c).

The third difference is that the dictionary of definitions in new section 4 of the Bill is shorter than that which appears in section 3 of the current Act. The main reason is that, as we shall see, the detailed formulas which determined payments made under the current Act to date have been left out of the Bill, removing the necessity to distinguish between different educational institutions and systems.

Part 3 of the Bill deals with the agreements authorised by the proposed legislation. Currently, the parallel provisions in Part 2 of the current Act contain detailed funding formulas, tables and conditions which prescribe the kinds of payments and amounts available under various agreements. In doing so, the current Act distinguishes explicitly between the government and non-government sector, systemic and non-systemic schools and pre-school, school and vocational education.

In drafting the Bill, however, a policy decision appears to have been made to prioritise flexibility over predicability in the quantum of funding available under Indigenous education agreements. The same three kinds of funding are still available by way of agreement with education providers, as spelt out in new subsection 10(1):

funding for recurrent expenditure

funding for higher or vocational education courses approved as a mixed mode away-from-base course under the ABSTUDY scheme, involving a mixture of distance education and face-to-face or residential classes, and

funding for specific projects which advance the objects of the Bill.

But the prescriptive formulas which, under the current Act, governed the amount payable under such agreements have been omitted from the Bill. Instead new subsections 10(2)-(4) simply state that amounts must be specified in the agreement or worked out in accordance with the agreement.

Agreements to fund specific projects can also be made on the same flexible basis with a person or body who is not an education provider, where the project advances the objects of the legislation (new section 11).

As with the current Act, the Bill sets out the amount of public money available to be spent on Indigenous Education Agreements. There is a general authorisation in new section 13 to appropriate funds to education providers for the provision of mixed mode courses to ABSTUDY students, (a parallel provision to section 12 in the current Act). New section 14, like section 13B in the current Act, states the amount of money appropriated for each eighteen month period of the quadrennium for recurrent expenditure and specific projects.

The ability to increase these amounts by regulation, constrained in the current Act by a formula expressed in section 13C, is now expressed in less proscriptive terms in new subsection 14(5)).

Money may be carried over from the last year of the current Act into the first year under the Bill, for funding of projects and recurrent expenditure (new section 16).

There is no express delegation power from the Minister under the current Act. By striking contrast, proposed section 17 permits the Minister to delegate any of his or her powers, not only to the Secretary of the Department, but indeed to any public service employee in the Department of Education, Training and Youth Affairs.

Although there are no provisions to repeal the current Act, the Bill will replace the Indigenous Education (Supplementary Assistance) Act 1989.(17) The Bill will operate on a quadrennial basis in line with the States Grants (Primary and Secondary Education Assistance) Bill 2000 which commences in January 2001 and provides Commonwealth funding for the education of all Australian school students. The Bill will implement the Government's 1999-2000 budget initiatives for indigenous education, specifically the priorities to improve literacy, numeracy and attendance outcomes for indigenous students.

Although the Bill appears, through less prescriptive formulas in new subsections 10(2)-(4), to provide a more flexible funding process, new section 12 provides more stringent accountability and reporting provisions. These include the ability of the Commonwealth to recover or withhold funding if Indigenous Education Agreement conditions are breached. The Explanatory Memorandum also stresses that the accountability provisions will include agreed performance targets. Such provisions may make it more difficult for some providers, particularly those seeking cultural outcomes such as the maintenance of Indigenous languages and the appreciation of culture and identity of Indigenous people, to make an agreement, or to meet the reporting provisions.

Commonwealth funding was available through the Dept of Education and Youth Affairs, Dept of Aboriginal Affairs, Commonwealth Schools Commission, Curriculum Development Centre and the National Aboriginal Education Committee. See: Commonwealth Schools Commission, Funding Priorities in Aboriginal and Torres Strait Islander Education Canberra, July 1984 and House of Representatives Select Committee on Aboriginal Education, Aboriginal Education, Canberra, September 1985, pp. 46-67.

See for example: B. H. Watts, Aboriginal Futures, A Review of Research and Developments and Related Policies in the Education of Aborigines, (1982); Commonwealth Schools Commission/National Aboriginal Education Committee, Funding Priorities in Aboriginal and Torres Strait Islander Education (July 1984); House of Representatives Select Committee on Aboriginal Education, Aboriginal Education (September 1985) and the Report of the Committee of Review of Aboriginal Employment and Training Programs (August 1985).

An amendment to the current Act in 1995, replaced of the word 'Aboriginal' with 'Indigenous'.

For an overview of the evolution of a national Indigenous education policy see: Senate Employment, Workplace Relations, Small Business and Education References Committee, Katu Kalpa: Report on the Inquiry into the Effectiveness of Education and Training Programs for Indigenous Australians, Canberra, March 2000, pp. 19-40.

National Review of Education for Aboriginal and Torres Strait Islander Peoples. Final Report, Canberra, DEET, 1995.

See Senate Employment, Workplace Relations, Small Business and Education References Committee, Katu Kalpa: Report on the Inquiry into the Effectiveness of Education and Training Programs for Indigenous Australians, Canberra, March, 2000, Table 1, p. 13.

Sean Brennan and Coral Dow
16 August 2000
Bills Digest Service
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